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Date	Status
Aug 19, 2019	Chaptered by Secretary of State - Chapter 170, Statutes of 2019.
Aug 19, 2019	Approved by the Governor.
Aug 12, 2019	Enrolled and presented to the Governor at 2 p.m.
Jul 10, 2019	In Assembly. Ordered to Engrossing and Enrolling.
Jul 8, 2019	Read third time. Passed. Ordered to the Assembly.
Jun 19, 2019	Read second time. Ordered to third reading.
Jun 18, 2019	From committee: Do pass. (Ayes 6. Noes 0.) (June 18).
Jun 12, 2019	Referred to Com. on PUB. S.
May 30, 2019	In Senate. Read first time. To Com. on RLS. for assignment.
May 29, 2019	Read third time. Passed. Ordered to the Senate.
May 28, 2019	Withdrawn from committee.
May 24, 2019	Re-referred to Com. on RLS.
May 23, 2019	From committee chair, with author's amendments: Amend, and re-refer to Com. on RLS. Read second time and amended.
Apr 10, 2019	From committee: Do pass and re-refer to Com. on RLS. (Ayes 6. Noes 2.) (April 9). Re-referred to Com. on RLS.
Mar 28, 2019	Re-referred to Com. on PUB. S.
Mar 27, 2019	From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended.
Feb 15, 2019	Referred to Com. on PUB. S.
Feb 7, 2019	From printer. May be heard in committee March 9.
Feb 6, 2019	Read first time. To print.

Date	Description	Location	Votes
Jul 8, 2019	Assembly 3rd Reading AB392 Weber et al. By Mitchell	Senate Floor	33 3 3 Passed
Jun 18, 2019	Do pass	Senate Standing Committee on Public Safety	6 0 1 Passed
May 29, 2019	AB 392 Weber Assembly Third Reading	Assembly Floor	67 0 12 Passed
Apr 9, 2019	Do pass and be re-referred to the Committee on [Rules]	Assembly Standing Committee on Public Safety	6 2 0 Passed

Key

Pro

Against

Did Not Vote

SENATE RULES COMMITTEE

Office of Senate Floor Analyses

(916) 651-1520 Fax: (916) 327-4478

AB 392

THIRD READING

Bill No: AB 392

Author: Weber (D), Atkins (D), McCarty (D) and Rendon (D), et al.

Amended: 5/23/19 in Assembly

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 6/18/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Morrell

ASSEMBLY FLOOR: 68-0, 5/29/19 - See last page for vote

SUBJECT: Peace officers: deadly force

SOURCE: Alliance for Boys and Men of Color

American Civil Liberties Union of California

Anti Police-Terror Project

California Families United 4 Justice

Communities United for Restorative Youth Justice

Justice Teams Network

PICO California

PolicyLink

STOP Coalition

UDW America – AFSCME Local 3930

DIGEST:

This bill revises the standards for use of deadly force by peace officers.

ANALYSIS:

Existing law:

Provides that homicide is justifiable when committed by any person in any of the following cases: (Pen. Code, § 197)
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
3. When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
States that homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either:
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. (Pen. Code § 196.)
States that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Pen. Code § 835a).

This bill:

Specifies that homicide is justifiable when committed by a peace officer and those acting by their command in their aid and assistance, under either of the following circumstances:
1. In obedience to any judgment of a competent court; or
2. When the homicide results from a peace officer’s use of force that is in compliance with the standards of Penal Code Section 835a (as set forth below).
Provides that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.
Specifies that, despite the ability to use objectively reasonable force, a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
1. To defend against an imminent threat of death or serious bodily injury to the officer or to another person.
2. To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.
Provides that a peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
Specifies that a peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force, otherwise in compliance with the provisions of this bill to effect the arrest or to prevent escape or to overcome resistance.
Clarifies that for the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.
Defines “deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
Specifies that a threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
Specifies that the “totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.
Finds and declares the following:
1. That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.
2. As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.
3. That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.
4. That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.
5. That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.

Background

California sets forth specific rules for justifiable homicide by peace officers. Under current California code a peace officer may kill anyone charged with a felony who is fleeing or resisting arrest. This law was enacted in 1872. California Penal Code § 196 is the single oldest un-amended law enforcement use of force statute in the country. In 1985, the United States Supreme Court decided the case of Tennessee v. Garner, 471 U.S. 1. In Garner the court held:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. . . . A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.

Additionally, the United States Supreme Court decided Graham v. Connor, 490 U.S. 386 in 1989. In Graham the court held that an objective reasonableness test should be used as the standard to determine whether a law enforcement official used excessive force in the course of making an arrest, or other action. The court stated:

As in other Fourth Amendment contexts... the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation…[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Following the decisions in Graham and Garner California has been operating in a reality where the statutes related to police use of force are outdated and unconstitutional. Currently, the California Penal Code authorizes police to use force to arrest, prevent escape, and overcome resistance – without requiring the force to be proportional. (Penal Code § 835a). It authorizes police deadly force without limiting its use to situations where killing is needed to defend against a threat of death or serious injury. On its face, the Penal Code justifies police killing any person charged with a felony who is fleeing or resisting arrest – whether or not the person poses a danger to the officer or someone else (Penal Code § 196).

AB 392 updates that language and specifies that, in California:

To defend against an imminent threat of death or serious bodily injury to the officer or to another person; or
To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

Unlike existing California statutory law, the provisions of this bill would exceed the standards articulated and set forth by the U.S. Supreme Court in Graham and Garner.

AB 392 also balances the nature of officers’ roles in engaging the public in potentially dangerous situations. This bill specifies that a peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force, otherwise in compliance with the provisions of this bill to effect the arrest or to prevent escape or to overcome resistance.

However, this bill clarifies that de-escalation techniques should be used by law enforcement agencies in California. This bill finds and declares “[a]s set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”

This bill additionally requires that an officer’s conduct prior to, and during, the use of deadly force must be considered in evaluating whether or not the use of deadly force is justified. Specifically this bill states that the “totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.

Under California Code, our rule regarding use of deadly force is significantly outdated and non-compliant with constitutional standards under Tennessee v. Garner, (1985) 471 U.S. 1.

Under current California Penal Code standard is:

Police are authorized to use deadly force on any person charged with a felony who is fleeing or resisting arrest – whether or not the person poses a danger to the officer or someone else (Penal Code § 196).

The standard as set forth in Garner is:

The standard as set forth in this bill is:

Peace officers are justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

The provisions in this bill exceed the standards set forth in Garner.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/18/19)

Alliance for Boys and Men of Color (co-source)

American Civil Liberties Union of California (co-source)

Anti Police-Terror Project (co-source)

California Families United 4 Justice (co-source)

Communities United for Restorative Youth Justice (co-source)

Justice Teams Network (co-source)

PICO California (co-source)

PolicyLink (co-source)

STOP Coalition (co-source)

UDW America – AFSCME Local 3930 (co-source)

AFSCME 3299

Alameda Labor Council

Alliance San Diego

American Friends Service Committee

Amnesty International

Anti-Defamation League

Asian Americans Advancing Justice

Asian Law Caucus

Asian Pacific Environmental Network

Asian Solidarity Collective

AYPAL: Building API Community Power

Bay Area Student Activists

Bend the Arc Jewish Action

Bet Tzedek Legal Services

Black American Political Association of California

Black Women’s Institute for Leadership Development

Brothers Sons Selves Coalition

California Black Health Network

California Calls

California Civil Liberties Advocacy

California Conference of the NAACP

California Families United 4 Justice

California Immigrant Policy Center

California Labor Federation

California Latinas for Reproductive Justice

California League of United Latin American Citizens

California National Party

California Nurses Association

California Pan-Ethnic Health Network

California Public Defenders Association

California Voices for Progress

Center for African Peace and Conflict Resolution

Center for Juvenile and Criminal Justice

Change Begins with ME

Children’s Defense Fund California

City and County of San Francisco

Clergy & Laity United for Economic Justice

Cloverdale Indivisible

Coalition for Humane Immigrant Rights

Coalition for Justice and Accountability

Committee for Racial Justice

Community Coalition for Substance Abuse Prevention and Treatment

Community United for Restorative Youth Justice

Council on American-Islamic Relations-California

Courage Campaign

CWA-Communications Workers of America AFL-CIO

Davis People Power

Democrats of Greater Riverside

Disability Rights California

Drug Policy Alliance

Earl B. Gillam Bar Association

EduResearcher

Ella Baker Center for Human Rights

Empowering Pacific Islander Communities

Exonerated Nation

Fair Chance Project

Fannie Lou Hamer Institute

Fathers and Families of San Joaquin

Frederick Douglass Family Initiatives

Friends Committee on Legislation of California

Greater Sacramento Urban League

Green Party of Sacramento County

Hawk Institute

Hillcrest Indivisible

Homie UP

Human Impact Partners

If/When/Now: Lawyering for Reproductive Justice

Imani community Church

Individual Peninsula

Indivisible CA37

Indivisible California Statestrong (60 Indivisible Groups)

Indivisible Colusa County

Indivisible Los Angeles

Indivisible Marin

Indivisible Project

Indivisible San Diego Central

Indivisible Sausalito

Indivisible South Bay-LA

Indivisible Stanislaus

Indivisible Ventura

Indivisible Watu

Indivisibles of Sherman Oaks

Initiate Justice

InnerCity Struggle

International Human Rights Clinic at Santa Clara Law

Japanese American Citizens League, San Jose Chapter

Jewish Public Affairs

Jewish Voice for Peace-San Diego Chapter

Justice & Witness Ministry of Plymouth United Church of Christ

Justice for Josiah Campaign

Kehilla Community Synagogue

LA Voice

League of Women Voters

League of Women Voters of California

Los Angeles Black Worker Center

Los Angeles County Democratic Party

March for Our Lives California

MARCH ON

Mayor of Oakland

Mid-City CAN

Motivating Individual Leadership for Public Advancement

NARAL Pro-Choice California

National Action Network

National Association of Social Workers-California Chapter

National Center for Youth Law

National Compadres Network

National Juvenile Justice Network

National Lawyers Guild

National Nurses United

National Union of Healthcare Workers

Nihonmachi Outreach Committee

Oakland Privacy

Orange County Communities Organized for Responsible Development

Orchard City Indivisible

Our Revolution Long Beach

Pacifica Progressive Alliance

Pacifica Social Justice

Pan African Global Trade and Development Conference

Partnership for the Advancement of New Americans

Paving Great Futures

Peace and Freedom Party of California

People Power LA/West

People’s Alliance for Justice

Pillars of the Community

Prevention Institute

Progressive Students of MiraCosta College

Public Health Advocates

Public Health Justice Collective

Revolutionary Scholars

Riverside Temple Beth El

Root & Rebound

Rooted in Resistance-San Gabriel Valley

Sacramento Area Black Caucus

Sacramento Jewish Community Relations Council

Sacramento LGBT Community Center

Sacramento State Black Student Union

Saint Mark United Methodist Church

San Diegans for Criminal Justice Reform

San Diego Coalition for Reproductive Justice

San Diego High School’s Cesar Chavez Service Club

San Diego Immigrant Rights Consortium

San Diego La Raza Lawyers Association

San Diego LGBT Pride

San Francisco District Attorney’s Office

San Francisco No Injunctions Coalition

San Francisco Peninsula People Power

San Francisco Public Defender’s Office

San Jose/Silicon Velley NAACP

San Mateo Adult School Federation of Teachers-CFT Local 4681

Santa Barbara Women’s Political Committee

SEIU California

SEIU Local 1000

Self-Awareness and Recovery

Showing Up for Racial Justice

Showing Up for Racial Justice Bay Area

Showing Up for Racial Justice San Diego

Showing Up for Racial Justice Santa Barbara

Sister Warriors Freedom Coalition

Smart Justice California

Southeast Asia Resource Action Center

Starting Over, Inc.

SURJ at Sacred Heart-San Jose

SURJ Greater Dayton

The Praxis Project

The Resistance Northridge-Indivisible

The San Diego LGBT Community Center

The Social & Environmental Justice Committee for the Universalist Unitarian Church of Riverside

The W. Haywood Burns Institute

The Women’s Foundation of California

Think Dignity

Together We Stand

Together We Will/Indivisible-Los Gatos

UDW/AFSCME Local 3930

United Food and Commercial Workers Western States Council

University of California Student Association

University Professional and Technical Employees-Communication Workers of America

Urban Scholars Union-San Diego City College

Voices for Progress-California

We The People-San Diego

Western Center on Law and Poverty

White People 4 Black Lives

Women For: Orange County

Women’s Health Specialists

Youth ALIVE!

Youth Forward

Youth Justice Coalition

Approximately 100 individuals

OPPOSITION: (Verified 6/18/19)

Anaheim Police Association

Association for Los Angeles Deputy Sheriffs

Brawley Public Safety Employee Association

Burbank Police Officers’ Association

California Narcotic Officers Association

California Rifle and Pistol Association

Chula Vista Police Officers Association

City of Brisbane Police Department

Cities of Camarillo; Clovis; Cypress; El Centro; Escalon; Fountain Valley; Hemet; La Palma; Los Alamitos; Mission Viejo; and Ontario

El Cerrito Police Employees Association

Fresno Police Officers Association

Glendale Police Officers’ Association

Hanford Police Officers’ Association

Hawthorne Police Officers Association

Kern Law Enforcement Association

Kings County Deputy Sheriff’s Association

League of California Cities

Manhattan Beach Police Officers’ Association

Napa County Deputy Sheriffs’ Association

National Association of Police Organizations

Oakland Police Officers Association

Ontario Police Officers’ Association

Peace Officers Association of Petaluma

Redondo Beach Officers’ Association

Sacramento County Alliance of Law Enforcement

San Diego Community College Police Officers Association

San Diego County Board of Supervisors

San Diego County Probation Officers Association

San Diego District Attorney Investigator’s Association

San Diego Harbor Police Officers Association

San Francisco Police Officers Association

San Joaquin County Deputy Sheriffs Association

Santa Barbara County Deputy Sheriffs’ Association

Shasta County Board of Supervisors

Solano County Deputy Sheriff Association

Southwest California Legislative Council

Stockton Police Officers Association

Sunnyvale Public Safety Officers’ Association

Tehama County Deputy Sheriff’s Association

Union City Police Officer’s Association

Upland Police Management Association

Ventura County Deputy Sheriffs’ Association

Ventura County Sheriff’s Office

Yreka Police Officers Association

ARGUMENT IN SUPPORT: According the American Civil Liberties Union of California:

“The American Civil Liberties Union of California is proud to cosponsor your AB 392, which will replace the lax standard currently set by California law and the U.S. Constitution that police officers can use deadly force whenever ‘reasonable,’ and replace it with a more stringent standard that appropriately authorizes police officers to use deadly force only when necessary to defend against an imminent threat of death or serious bodily injury.

“After the May 23 amendments, the ‘necessary’ standard established by AB 392 requires that officers use ‘other techniques and resources,’ other than deadly force, when reasonably safe and feasible to do so. This bill also requires that when determining the propriety of deadly force, decisionmakers must consider the conduct leading up to the use of force.

“Importantly, the requirement that force be ‘necessary’ means that if de-escalation is possible, deadly force is not necessary. This is further borne out by the definition of ‘totality of the circumstances,’ which includes officer conduct leading up to use of force, requiring decisionmakers to examine whether officers unnecessarily escalated situations leading up to a use of force, or failed to deescalate when it would have been reasonable to do so. In addition, the statutory language clarifying that ‘[i]n determining whether deadly force is necessary, officers … shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer’ focuses the evaluation of a use of deadly force on the officer’s use of other options, including de-escalation.

“With AB 392, California will have one of the strongest deadly force laws in the nation – if not the strongest. It will make California the only to state to require in statute that in evaluating the lawfulness of a use of force decisionmakers consider the conduct of the officer leading up to the use of force. It will also make California the only state to set forth in statute a strong and clear definition of ‘imminent threat,’ that ‘a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.’ In other words, AB 392 authorizes the use of deadly force when a reasonable officer on the scene would believe, based on the facts and circumstances known to the officer, that the subject appears to have the ability, opportunity, and intention to kill or cause serious bodily injury to an officer or another person, and the use of deadly force is necessary to address that threat. This definition draws upon best practices within policing, but has been incorporated by no other state in the country into statutory law.”

ARGUMENT IN OPPOSITION: According to the Burbank Police Officers’ Association:

“Our organization recognizes that our profession exists at the will and for the benefit of the community we serve. In addition, we embrace the concept of equal protection under the law. We would not support any legislation that places an otherwise law abiding citizen in an impossible situation where they must make a life and death decision in an instant that will later be judged for its potential criminality from a vantage removed from this reality and with the luxury of time and safety. Why would we do this to the law enforcement professionals who are also citizens and members of our communities?

“While there is always room for critical examination of tactics, policies, and training, this bill is dangerous because it criminalizes the practice of public safety in our communities. AB 392 contains no mandates for use of force policies and training in California.

“California’s police officers take an oath that they will run towards danger when everyone else is running away—they do so to protect the families and communities they serve. AB 392 seeks to implement standards that will have a chilling effect on the men and women in uniform—such an effect will result in policy implications that further endanger the public.

“A simple review of the proposed legislation reveals that AB 392 does nothing to change use of force policing policies, training, or guidelines-no funding for training, critical to any plan to reduce police use of force, and no proactive plan to achieve such a reduction in force. We can and must do better.

“Life is sacred. Law enforcement embraces this fact and demonstrates this daily in the risks taken to protect the public in addition to the data documenting the scarcity of police use of force in comparison to the number of police contacts. This is a sensitive and important issue that we must proactively address, but AB 392 is not the answer. We urge the bill’s authors, sponsors, and supporters to develop a truly effective and achievable improvements to help California law enforcement minimize the use of force.”

ASSEMBLY FLOOR: 68-0, 5/29/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Daly, Diep, Eggman, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Bigelow, Cooley, Dahle, Flora, Eduardo Garcia, Kiley, Mathis, Melendez, Patterson, Ramos, Voepel, Waldron

Prepared by: Gabe Caswell / PUB. S. /

6/26/19 16:46:26

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 392 Hearing Date: June 18, 2019

Author:	Weber
Version:	May 23, 2019
Urgency:	No	Fiscal:	No
Consultant:	GC

Subject: Peace Officers: Deadly Force

HISTORY

Source: ACLU of California; Alliance for Boys and Men of Color; Anti Police-Terror Project; California Faculty Association; California Families United 4 Justice; Communities United for Restorative Youth Justice; Justice Teams Network; PICO California; PolicyLink; STOP Coalition; UDW America – AFSCME Local 3930

Prior Legislation: AB 931 (Weber), 2018, held in Senate Rules

Support: AFSCME 3299, Alameda Labor Council; Anti-Defamation League; Alliance San Diego; American Friends Service Committee; Amnesty International; Asian Americans Advancing Justice; Asian Law Caucus; Asian Pacific Environmental Network; Asian Solidarity Collective; AYPAL: Building API Community Power; Bay Area Student Activists; Bend the Arc Jewish Action; Bet Tzedek Legal Services; Black American Political Association of California; Brothers Sons Selves Coalition; California Black Health Network; California Calls; California Civil Liberties Advocacy; California Families United 4 Justice; California Immigrant Policy Center; California Labor Federation; California Latinas for Reproductive Justice; California League of United Latin American Citizens; California National Party; California Nurses Association; California Pan-Ethnic Health Network; California Public Defenders Association; California Conference of the NAACP; California Voices for Progress; Center for African Peace and Conflict Resolution; Center for Juvenile and Criminal Justice; Change Begins with ME; Children’s Defense Fund California; Clergy & Laity United for Economic Justice; Cloverdale Indivisible; Coalition for Humane Immigrant Rights (CHIRLA); Coalition for Justice and Accountability; Committee for Racial Justice; Community Coalition for Substance Abuse Prevention and Treatment; Community United for Restorative Youth Justice; Council on American-Islamic Relations-California; Courage Campaign; CWA-Communications Workers of America AFL-CIO; Davis People Power; Democrats of Greater Riverside; Disability Rights California; Drug Policy Alliance; Earl B. Gillam Bar Association; EduResearcher; Ella Baker Center for Human Rights; Empowering Pacific Islander Communities; Exonerated Nation; Fair Chance Project; Fannie Lou Hamer Institute; Fathers and Families of San Joaquin; Frederick Douglass Family Initiatives; Friends Committee on Legislation of California; Greater Sacramento Urban League; Green Party of Sacramento County; Hawk Institute; Hillcrest Indivisible; Human Impact Partners; Homie UP; If/When/Now: Lawyering for Reproductive Justice; Imani community Church; Indivisible California Statestrong (60 Indivisible Groups); Indivisible CA37; Indivisible Colusa County; Indivisible Los Angeles; Indivisible Marin; Individual Peninsula; Indivisible Project; Indivisible San Diego Central; Indivisible Sausalito; Indivisible South Bay-LA; Indivisible Stanislaus; Indivisible Ventura; Indivisible Watu; Indivisibles of Sherman Oaks; Initiate Justice; InnerCity Struggle; International Human Rights Clinic at Santa Clara Law; Japanese American Citizens League, San Jose Chapter; Jewish Voice for Peace-San Diego Chapter; Justice for Josiah Campaign; Justice & Witness Ministry of Plymouth United Church of Christ; Kehilla Community Synagogue; LA Voice; League of Women Voters of California; Los Angeles Black Worker Center; Los Angeles County Democratic Party; March for Our Lives California; MARCH ON; Mayor of Oakland; Mid-City CAN; Motivating Individual Leadership for Public Advancement (MILPA); NARAL Pro-Choice California; National Action Network; National Association of Social Workers-California Chapter; National Center for Youth Law; National Compadres Network; National Juvenile Justice Network; National Lawyers Guild; National Nurses United; National Union of Healthcare Workers; Nihonmachi Outreach Committee; Oakland Privacy; Orange County Communities Organized for Responsible Development; Orchard City Indivisible; Our Revolution Long Beach; Pacifica Progressive Alliance; Pacifica Social Justice; Pan African Global Trade and Development Conference; Partnership for the Advancement of New Americans; Paving Great Futures; Peace and Freedom Party of California; People’s Alliance for Justice; People Power LA/West; Pillars of the Community; The Praxis Project; Prevention Institute; Progressive Students of MiraCosta College; Public Health Advocates; Public Health Justice Collective; The Resistance Northridge-Indivisible; Revolutionary Scholars; Riverside Temple Beth El; Root & Rebound; Rooted in Resistance-San Gabriel Valley; Sacramento Area Black Caucus; Sacramento Jewish Community Relations Council; Sacramento LGBT Community Center; Sacramento State Black Student Union; Saint Mark United Methodist Church; San Diegans for Criminal Justice Reform; San Diego Coalition for Reproductive Justice; San Diego High School’s Cesar Chavez Service Club; San Diego La Raza Lawyers Association; The San Diego LGBT Community Center; San Diego LGBT Pride; San Francisco District Attorney’s Office; San Francisco No Injunctions Coalition; San Francisco Peninsula People Power; San Francisco Public Defender’s Office; San Jose/Silicon Velley NAACP; San Mateo Adult School Federation of Teachers-CFT Local 4681; Santa Barbara Women’s Political Committee; Self-Awareness and Recovery; Service Employees International Union (SEIU) Local 1000; Showing Up for Racial Justice (SURJ) Bay Area; Showing Up for Racial Justice (SURJ-B); Showing Up for Racial Justice San Diego; Showing Up for Racial Justice (SURJ) Santa Barbara; SEIU-California; Sister Warriors Freedom Coalition; Smart Justice California; Southeast Asia Resource Action Center; SURJ Greater Dayton; SURJ at Sacred Heart-San Jose; Starting Over, Inc; Think Dignity; Together We Stand; Together We Will/Indivisible-Los Gatos; United Food and Commercial Workers (DFCW) Western States Council; The Social & Environmental Justice Committee for the Universalist Unitarian Church of Riverside; University Professional and Technical Employees-Communication Workers of America; Urban Scholars Union-San Diego City College; Voices for Progress-California; The W. Haywood Burns Institute; Western Center on Law and Poverty; We The People-San Diego; White People 4 Black Lives; Women For: Orange County; The Women’s Foundation of California; Women’s Health Specialists; Youth ALIVE!; Youth Forward; Youth Justice Coalition; approximately 100 individuals

Opposition: Anaheim Police Association; Brawley Public Safety Employee Association; Burbank Police Officers’ Association; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Correctional Supervisors Organization; California Narcotic Officers Association; California Rifle and Pistol Association; Chula Vista Police Officers Association; City of Brisbane Police Department; City of Camarillo; City of Clovis; City of Cypress; City of El Centro; City of Escalon; City of Fountain Valley; City of Hemet; City of La Palma; City of Los Alamitos; City of Mission Viejo; City of Ontario; El Cerrito Police Employees Association; Fresno Police Officers Association; Glendale Police Officers’ Association; Hanford Police Officers’ Association; Hawthorne Police Officers Association; Kern Law Enforcement Association; Kings County Deputy Sheriff’s Association; League of California Cities; Los Angeles County Professional Peace Officers Association; Manhattan Beach Police Officers’ Association; Napa County Deputy Sheriffs’ Association; National Association of Police Organizations; Oakland Police Officers Association; Ontario Police Officers’ Association; Ontario Police Officers’ Association; Peace Officers Association of Petaluma; Redondo Beach Officers’ Association; Sacramento County Alliance of Law Enforcement; San Diego Community College Police Officers Association; San Diego County Board of Supervisors; San Diego County Probation Officers Association; San Diego District Attorney Investigator’s Association; San Diego Harbor Police Officers Association; San Francisco Police Officers Association; San Joaquin County Deputy Sheriffs Association; Santa Barbara County Deputy Sheriffs’ Association; Shasta County Board of Supervisors; Solano County Deputy Sheriff Association; Southwest California Legislative Council; Stockton Police Officers Association; Sunnyvale Public Safety Officers’ Association; Tehama County Deputy Sheriff’s Association; Union City Police Officer’s Association; Upland Police Management Association; Ventura County Deputy Sheriffs’ Association; Ventura County Sheriff’s Office, Yreka Police Officers Association

Assembly Floor Vote: 68 - 0

PURPOSE

The purpose of this bill is to revise the standards for use of deadly force by peace officers.

Existing law provides that homicide is justifiable when committed by any person in any of the following cases: (Pen. Code, § 197)

When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

Existing law states that homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either:

In obedience to any judgment of a competent Court; or,
When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. (Pen. Code § 196.)

This bill specifies that homicide is justifiable when committed by a peace officer and those acting by their command in their aid and assistance, under either of the following circumstances:

In obedience to any judgment of a competent court; or
When the homicide results from a peace officer’s use of force that is in compliance with the standards of Penal Code Section 835a (as set forth below).

Existing law states that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Pen. Code § 835a).

This bill provides that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.

This bill specifies that, despite the ability to use objectively reasonable force, a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

To defend against an imminent threat of death or serious bodily injury to the officer or to another person.
To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

This bill provides that a peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

This bill specifies that a peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force, otherwise in compliance with the provisions of this bill to effect the arrest or to prevent escape or to overcome resistance.

This bill clarifies that for the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.

This bill defines “deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.

This bill specifies that a threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

This bill specifies that the “totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.

This bill finds and declares the following:

That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.
As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.
That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.
That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.
That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.

COMMENTS

1. Need for This Bill

According to the author:

American political ideals require careful consideration of how government exercises power over its people. Vigilance is especially necessary in policing where, on a daily basis, democratic notions of liberty, security and autonomy are poised against the demands of public safety and the force that may be required to effect it. Because the power to use force is granted by the governed, every effort must be made to ensure that force is exercised with careful attention to preserving the life and dignity of the individual to remain legitimate.

In 2017, officers killed 172 people in California, only half of whom had guns. Police kill more people in California than in any other state – and at a rate 37% higher than the national average per capita. Of the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. A 2015 report found that police in Kern County killed more people per capita than in any other U.S. county. These tragedies disproportionately impact communities of color as California police kill unarmed young black and Latino men at significantly higher rates than they do white men.

Community trust in law enforcement is undermined when force is used unnecessarily and disproportionately. Police are less able to do their job when community distrust leads to decreased respect and cooperation, a situation that increases the risks to officers and civilians.

AB 392 reflects policies that policing experts recognize as effective at better preserving life while also allowing officers the latitude needed to ensure public safety. Under President Obama, the U.S. Department of Justice helped many cities adopt similar policies, including San Francisco and Seattle. Seattle’s federal monitor determined that the policy change resulted in a marked reduction in serious uses of force without compromising the safety of officers.

AB 392 is the necessary step to affirming the sanctity of human life. For nearly a century and a half Californians have witnessed the justification of police homicides due to a standard that says it can be reasonable to use deadly force even if there were other alternatives. Far too many days and far too many deaths have gone by with inaction by those who have the power to enact change. As recent events have made clear, Californians will no longer tolerate these deaths as acceptable collateral damage for preserving the status quo, especially when there are effective best practices that will save both officer and civilian lives.”

2. Self-Defense, Defense of Others, and Justifiable Homicide Generally

Californians generally have the right to self-defense and to defend others. According to the California jury instructions, the right to self-defense and defense of others are explained as follows:

Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 505 – Justifiable Homicide: Self-Defense or Defense of Another. “[A] defendant is not guilty of [homicide] if he or she was justified in killing or attempting to kill someone in self-defense or defense of another. The defendant acted in lawful self-defense defense of another if:

The defendant reasonably believed that he, she, or someone else was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped, maimed, or robbed;
The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and
The defendant used no more force than was reasonably necessary to defend against that danger.

Additionally homicide is generally justifiable in California under the standards set forth under Penal Code § 197. Penal Code § 197 specifically provides the following:

Homicide is justifiable when committed by any person in any of the following cases: (Pen. Code, § 197)

When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

3. Existing California Statues Related to Police Use of Deadly Force are Outdated

AB 392 would update that language and specify that, in California:

To defend against an imminent threat of death or serious bodily injury to the officer or to another person; or
To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

Unlike existing California statutory law, the provisions of this bill would exceed the standards articulated and set forth by the U.S. Supreme Court in Graham and Garner.

AB 392 also balances the nature of officers’ roles in engaging the public in potentially dangerous situations. The bill specifies that a peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force, otherwise in compliance with the provisions of this bill to effect the arrest or to prevent escape or to overcome resistance.

However, the bill clarifies that de-escalation techniques should be used by law enforcement agencies in California. The bill finds and declares “[a]s set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”

The bill additionally requires that an officer’s conduct prior to, and during, the use of deadly force must be considered in evaluating whether or not the use of deadly force is justified. Specifically the bill states that the “totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.

4. Fleeing Felon Rule

Under California Code, our rule regarding use of deadly force is significantly outdated and non-compliant with constitutional standards under Tennessee v. Garner, (1985) 471 U.S. 1.

Under current California Penal Code standard is:

The standard as set forth in Garner is:

The standard as set forth in this bill is:

The provisions in this bill exceed the standards set forth in Garner.

5. Risk to Self

The current bill prohibits the use of deadly force by a peace officer in a situation where an individual only poses a risk to himself or herself. Specifically, the bill provides that a peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

Proponents argue that the need for this provision is because if an individual is merely risking harm to themselves and to no one else, there is no need for law enforcement to engage and use deadly force against that person. Opponents to the legislation argue that there is a blurry line between an unstable and armed person holding a firearm that they are threatening to use on themselves harming only themselves, and not the officers or a civilian bystander.

Under the current version of the bill, the officer will have to reasonably determine if that threat the person poses to themselves becomes an imminent threat to cause death or serious bodily injury to another.

6. Lack of Training and Minimum Policies in AB 392 are Addressed in SB 230

One of the criticisms levied by the opposition to AB 392 is that the bill fails to adequately train officers in the use of deadly force provisions outlined in the legislation, fails to amend the training officers already receive, and fails to update use of force policies to reflect the provisions of the bill. Not only would law enforcement naturally have to do all of these things if this bill were to become law, but SB 230 (Caballero) specifically addresses all of those issues.

SB 230 requires that each law enforcement agency shall maintain a policy that provides a minimum standard on the use of force. Each agency’s policy shall, without limitation, include all of the following:

A requirement that officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible.
A requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.
A requirement that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is objectively reasonable under the circumstances based upon the totality of information actually known to the officer.
Clear and specific guidelines regarding situations in which officers may or may not draw a firearm or point a firearm at a person.
A requirement that officers consider their surroundings and potential risks to bystanders, to the extent reasonable under the circumstances, before discharging a firearm.
Procedures for disclosing public records of police misconduct in accordance with California law.
Procedures for the filing, investigation, and reporting of citizen complaints regarding use of force incidents.
A requirement that an officer intercede when present and observing another officer using force that is clearly beyond that which is objectively reasonable under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.
Comprehensive and specific guidelines regarding approved methods and devices available for the application of force.
An explicitly stated requirement that officers carry out duties, including use of force, in a manner that is fair and unbiased.
Comprehensive and specific guidelines for the application of deadly force.
Comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice as specified.
The role of supervisors in the review of use of force applications.
A requirement that officers promptly procure medical assistance for persons injured in a use of force incident, when reasonable and safe to do so.
Training standards and requirements relating to demonstrated knowledge and understanding of the law enforcement agency’s use of force policy by officers, investigators, and supervisors.
Training and guidelines regarding vulnerable populations, including, but not limited to, children, elderly persons, people who are pregnant, and people with physical and developmental disabilities.
Comprehensive and specific guidelines under which the discharge of a firearm at or from a moving vehicle may or may not be permitted.
Factors for evaluating and reviewing all use of force incidents.
Minimum entry level and annual hourly training and course titles required to meet the objectives in the use of force policy.
A requirement for the regular review and updating of the policy to reflect developing practices and procedures.
Requires that each law enforcement agency shall make their use of force policy accessible to the public.

Additionally SB 230 requires the California Commission on Peace Officers Standards and Training (POST) to develop and implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the use of force and shall also develop uniform, minimum guidelines for adoption and promulgation by California law enforcement agencies for use of force. SB 230 provides that the POST guidelines and course of instruction shall stress that the use of force by law enforcement personnel is of important concern to the community and law enforcement and that law enforcement should safeguard life, dignity, and liberty of all persons, without prejudice to anyone. These guidelines shall be a resource for each agency executive to use in the creation of a use of force policy that the agency is encouraged to adopt and promulgate, and that reflects the needs of the agency, the jurisdiction it serves, and the law.

SB 230 specifies that the POST course or courses of basic training for law enforcement officers and the guidelines shall include all of the following:

Legal standards for use of force.
Duty to intercede.
The reasonable force doctrine.
Supervisory responsibilities.
Use of force review and analysis.
Guidelines for the use of deadly force.
State required reporting.
De-escalation and interpersonal communication training, including tactical methods that use time, distance, cover, and concealment, to avoid escalating situations that lead to violence.
Implicit and explicit bias and cultural competency.
Skills including de-escalation techniques to effectively, safely, and respectfully interact with people with disabilities or behavioral health issues.
Use of force scenario training including simulations of low-frequency, high-risk situations and calls for service, shoot-or-don’t-shoot situations, and real-time force option decision making.
Alternatives to the use of deadly force and physical force, so that de-escalation tactics and less lethal alternatives are, where reasonably practical, part of the decision making process leading up to the consideration of deadly force.
Mental health and policing, including bias and stigma.
Using public service, including the rendering of first aid, to provide a positive point of contact between law enforcement officers and community members to increase trust and reduce conflicts.

Though AB 392 does not contain provisions related to training of officers to comply with the mandates of the bill, or the adoption of minimum guidelines by law enforcement agencies, those provisions are contained in SB 230. SB 230 was unanimously passed by this committee on April 11, 2019 and off of the Senate floor on May 28, 2019 by a vote of 38-0.

7. Argument in Support

According the American Civil Liberties Union of California:

The American Civil Liberties Union of California is proud to cosponsor your AB 392, which will replace the lax standard currently set by California law and the U.S. Constitution that police officers can use deadly force whenever “reasonable,” and replace it with a more stringent standard that appropriately authorizes police officers to use deadly force only when necessary to defend against an imminent threat of death or serious bodily injury.

After the May 23 amendments, the “necessary” standard established by AB 392 requires that officers use “other techniques and resources,” other than deadly force, when reasonably safe and feasible to do so. The bill also requires that when determining the propriety of deadly force, decisionmakers must consider the conduct leading up to the use of force.

Importantly, the requirement that force be “necessary” means that if de-escalation is possible, deadly force is not necessary. This is further borne out by the definition of “totality of the circumstances,” which includes officer conduct leading up to use of force, requiring decisionmakers to examine whether officers unnecessarily escalated situations leading up to a use of force, or failed to deescalate when it would have been reasonable to do so. In addition, the statutory language clarifying that “[i]n determining whether deadly force is necessary, officers … shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer” focuses the evaluation of a use of deadly force on the officer’s use of other options, including de-escalation.

With AB 392, California will have one of the strongest deadly force laws in the nation – if not the strongest. It will make California the only to state to require in statute that in evaluating the lawfulness of a use of force decisionmakers consider the conduct of the officer leading up to the use of force. It will also make California the only state to set forth in statute a strong and clear definition of “imminent threat,” that “a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.” In other words, AB 392 authorizes the use of deadly force when a reasonable officer on the scene would believe, based on the facts and circumstances known to the officer, that the subject appears to have the ability, opportunity, and intention to kill or cause serious bodily injury to an officer or another person, and the use of deadly force is necessary to address that threat. This definition draws upon best practices within policing, but has been incorporated by no other state in the country into statutory law.

8. Argument in Opposition

According to the Burbank Police Officers’ Association:

Our organization recognizes that our profession exists at the will and for the benefit of the community we serve. In addition, we embrace the concept of equal protection under the law. We would not support any legislation that places an otherwise law abiding citizen in an impossible situation where they must make a life and death decision in an instant that will later be judged for its potential criminality from a vantage removed from this reality and with the luxury of time and safety. Why would we do this to the law enforcement professionals who are also citizens and members of our communities?

While there is always room for critical examination of tactics, policies, and training, this bill is dangerous because it criminalizes the practice of public safety in our communities. AB 392 contains no mandates for use of force policies and training in California.

California’s police officers take an oath that they will run towards danger when everyone else is running away—they do so to protect the families and communities they serve. AB 392 seeks to implement standards that will have a chilling effect on the men and women in uniform—such an effect will result in policy implications that further endanger the public.

A simple review of the proposed legislation reveals that AB 392 does nothing to change use of force policing policies, training, or guidelines-no funding for training, critical to any plan to reduce police use of force, and no proactive plan to achieve such a reduction in force. We can and must do better.

Life is sacred. Law enforcement embraces this fact and demonstrates this daily in the risks taken to protect the public in addition to the data documenting the scarcity of police use of force in comparison to the number of police contacts. This is a sensitive and important issue that we must proactively address, but AB 392 is not the answer.We urge the bill’s authors, sponsors, and supporters to develop a truly effective and achievable improvements to help California law enforcement minimize the use of force.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 392

Author:(Weber, et al.)

As Amended Ver:May 23, 2019

Majority vote

SUMMARY:

Limits the use of deadly force by a peace officer to those situations where it is necessary to defend against a threat of imminent serious bodily injury or death to the officer or to another person, or necessary to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.

Major Provisions

States that a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
1. To defend against an imminent threat of death or serious bodily injury to the officer or to another person;
2. To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily inly and if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, the peace officer shall make reasonable efforts to identify themselves as peace officer and to warn that deadly force may be used, or the officer has objectively reasonable grounds to believe that the person is aware of those facts;
Specifies that a peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
Defines "deadly force" as "any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm;"

COMMENTS:

According to the Author:

According to the author, "American political ideals require careful consideration of how government exercises power over its people. Vigilance is especially necessary in policing where, on a daily basis, democratic notions of liberty, security and autonomy are poised against the demands of public safety and the force that may be required to effect it. Because the power to use force is granted by the governed, every effort must be made to ensure that force is exercised with careful attention to preserving the life and dignity of the individual to remain legitimate.

"In 2017, officers killed 172 people in California, only half of whom had guns. Police kill more people in California than in any other state – and at a rate 37% higher than the national average per capita. Of the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. A 2015 report found that police in Kern County killed more people per capita than in any other U.S. county. These tragedies disproportionately impact communities of color as California police kill unarmed young black and Latino men at significantly higher rates than they do white men.

"Community trust in law enforcement is undermined when force is used unnecessarily and disproportionately. Police are less able to do their job when community distrust leads to decreased respect and cooperation, a situation that increases the risks to officers and civilians.

"AB 392 reflects policies that policing experts recognize as effective at better preserving life while also allowing officers the latitude needed to ensure public safety. Under President Obama, the U.S. Department of Justice helped many cities adopt similar policies, including San Francisco and Seattle. Seattle's federal monitor determined that the policy change resulted in a marked reduction in serious uses of force without compromising the safety of officers.

"AB 392 is the necessary step to affirming the sanctity of human life. For nearly a century and a half Californians have witnessed the justification of police homicides due to a standard that says it can be reasonable to use deadly force even if there were other alternatives. Far too many days and far too many deaths have gone by with inaction by those who have the power to enact change. As recent events have made clear, Californians will no longer tolerate these deaths as acceptable collateral damage for preserving the status quo, especially when there are effective best practices that will save both officer and civilian lives."

Arguments in Support:

According to PolicyLink, "California must update its outdated law on deadly use of force. Current law allows police to use deadly force whenever "reasonable", even if there is no threat to life or bodily security, and even if safe alternatives to deadly force are available. California law even authorizes deadly force that is below the standard of the Constitution. This disturbing level of discretion has had dire consequences: Police in California kill community members at a rate 37 percent higher than the national average, per capita, and several of our state's police departments have among the highest rates of killings in the country.

"In line with recommendations from policing and legal experts, including the California Attorney General, AB 392 updates California law so that police can use deadly force only when necessary to prevent death or serious injury, and requires them to use tactics to de-escalate a situation or use alternatives to deadly force when reasonable. Changing this standard will mean that officers will be trained to use deadly force less often and will be held accountable when they shoot and kill unnecessarily."

Arguments in Opposition:

According to Ventura County Sheriff's Office, "The United States Supreme Court has provided a well-reviewed standard (Graham V. Connor) for courts across our nation to evaluate and judge officers' actions. Adopting your bill's language inevitably sets the stage for conflict, confusion, and second-guessing within our courts and in the field when lives are on the line; and creates a new review standard that will be viewed more subjectively than the objective standard adopted by the State, the 9th Circuit, and the U.S. Supreme Court. It is important that force, in law enforcement, whether in California of elsewhere be evaluated under the same stringent standard pronounced by the United States Supreme Court. To do otherwise, could potentially put peace officers in California at greater risk than their counterparts nationwide, as officers hesitate and second guess if an incident crosses the ambiguous 'necessity' line. The reasonableness standard works in our society because an officer's actions can be judged in the moment using this framework. An evaluation based on necessity is wrought with second guessing and the application of facts not know to the officer at the time the force was used."

FISCAL COMMENTS:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

Please contact the policy committee for a full discussion of this bill.

VOTES:

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

NO: Lackey, Diep

UPDATED:

VERSION: May 23, 2019

CONSULTANT: David Billingsley / PUB. S. / (916) 319-3744 FN: 0001044

Date of Hearing: April 9, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 392

Author:(Weber) – As Amended Ver:March 27, 2019

SUMMARY:

States that homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under any of the following circumstances:
1. In obedience to any judgment of a competent court;
2. When the homicide results from a peace officer’s use of force, other than deadly force, that is in compliance with other provisions of this bill;
3. When, except in specified situations involving criminal negligence, the homicide would be justifiable pursuant defenses to homicide that are available to non-peace officers, in self-defense or the defense of another person;
4. When, except in specified situations involving criminal negligence, the officer reasonably believes, based on the totality of the circumstances, that the use of force resulting in a homicide is necessary to prevent the escape of a person, and all of the following are true:
  1. The peace officer reasonably believes that the person has committed, or has attempted to commit, a felony involving the use or threatened use of deadly force;
  2. The peace officer reasonably believes that the person will cause death or inflict serious bodily injury to another unless immediately apprehended; and
  3. If feasible, the peace officer has identified themselves as a peace officer and given a warning that deadly force may be used unless the person ceases flight, unless the officer has reasonable ground to believe the person is aware of these facts.
Specifies that with respect to justifiable homicide for a fleeing felon, “necessary” means that, given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person. The totality of the circumstances means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.
States that defenses to justifiable homicide do not provide a peace officer with a defense to manslaughter, as specified, if that person was killed due to the criminally negligent conduct of the officer, including situations in which the victim is a person other than the person that the peace officer was seeking to arrest, retain in custody, or defend against, or if the necessity for the use of deadly force was created by the peace officer’s criminal negligence.
States that a peace officer who has reasonable cause to believe that the person to be arrested has committed a crime may use reasonable force, other than deadly force, to effect the arrest, to prevent escape or to overcome resistance.
Provides that a peace officer who makes or attempts to make an arrest need not abandon or desist from the arrest by reason of the resistance or threatened resistance of the person being arrested.
States that a peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.
Specifies that a peace officer shall, however, attempt to control an incident through sound tactics, including the use of time, distance, communications, tactical repositioning, and available resources, in an effort to reduce or avoid the need to use force whenever it is safe, feasible, and reasonable to do so. This language does not conflict with the limitations on the use of deadly force set forth in the defenses of justifiable homicide by a peace officer.
States that a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
1. To defend against a threat of imminent death or serious bodily injury to the officer or to another person;
2. To prevent the escape of a fleeing felon, as specified;
3. A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
States that the language of 9(a)-(c) does not provide the legal standard and shall not be used in any criminal proceeding against a peace officer relating to the use of force by that peace officer, or to any defenses to criminal charges under theories of justifiable homicide or any other defense asserted by that officer, but may be used in any civil or administrative proceeding.
Define the following terms:
1. “Deadly force” means “any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm;”
2. A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed;
3. “Necessary” means that, given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.
4. “Totality of the circumstances” means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.
Finds and declares all of the following:
1. That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law;
2. That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies;
3. That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force; and,
4. That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.

EXISTING LAW:

Provides that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. (Pen. Code, § 835a)
Specifies that a peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Pen. Code, § 835a)
Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—
1. In obedience to any judgment of a competent court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. (Pen. Code, §196.)
States that homicide is justifiable when committed by any person in any of the following cases: (Pen. Code, § 197)
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;
2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein;
3. When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,
4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

FISCAL EFFECT:

Unknown

COMMENTS:

Author's Statement: According to the author, "American political ideals require careful consideration of how government exercises power over its people. Vigilance is especially necessary in policing where, on a daily basis, democratic notions of liberty, security and autonomy are poised against the demands of public safety and the force that may be required to effect it. Because the power to use force is granted by the governed, every effort must be made to ensure that force is exercised with careful attention to preserving the life and dignity of the individual to remain legitimate.

“In 2017, officers killed 172 people in California, only half of whom had guns. Police kill more people in California than in any other state – and at a rate 37% higher than the national average per capita. Of the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. A 2015 report found that police in Kern County killed more people per capita than in any other U.S. county. These tragedies disproportionately impact communities of color as California police kill unarmed young black and Latino men at significantly higher rates than they do white men.

“Community trust in law enforcement is undermined when force is used unnecessarily and disproportionately. Police are less able to do their job when community distrust leads to decreased respect and cooperation, a situation that increases the risks to officers and civilians.

“AB 392 reflects policies that policing experts recognize as effective at better preserving life while also allowing officers the latitude needed to ensure public safety. Under President Obama, the U.S. Department of Justice helped many cities adopt similar policies, including San Francisco and Seattle. Seattle’s federal monitor determined that the policy change resulted in a marked reduction in serious uses of force without compromising the safety of officers.

“AB 392 is the necessary step to affirming the sanctity of human life. For nearly a century and a half Californians have witnessed the justification of police homicides due to a standard that says it can be reasonable to use deadly force even if there were other alternatives. Far too many days and far too many deaths have gone by with inaction by those who have the power to enact change. As recent events have made clear, Californians will no longer tolerate these deaths as acceptable collateral damage for preserving the status quo, especially when there are effective best practices that will save both officer and civilian lives.”
Fleeing Felon Rule: California’s current law regarding justifiable homicide was enacted in 1872 and has not been amended since that time. Meanwhile, the U.S. Supreme Court has placed limits on police use of deadly force which are not reflected in existing law. Under the current statute, the law regarding use of deadly force on fleeing felons is significantly outdated and does not comply with constitutional standards based on the U.S. Supreme Court’s decision in Tennessee v. Garner, (1985) 471 U.S. 1.

Current California law provides that a homicide committed by a police officer is justified
“When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.” (Pen. Code, § 196). Based on the statutory language, such a homicide is justified whether or not the person poses a danger to the officer or another person.

The standard as set forth in Garner is:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. . . . A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.

“. . ., if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. (Id. at 11-12.)

This bill would establish the following standard for justifiable use of deadly force on a fleeing felon: When the officer reasonably believes, based on the totality of the circumstances, that the use of force resulting in a homicide is necessary to prevent the escape of a person, and all of the following are true:

- 1. The peace officer reasonably believes that the person has committed, or has attempted to commit, a felony involving the use or threatened use of deadly force;
  2. The peace officer reasonably believes that the person will cause death or inflict serious bodily injury to another unless immediately apprehended; and,
  3. If feasible, the peace officer has identified themselves as a peace officer and given a warning that deadly force may be used unless the person ceases flight, unless the officer has reasonable ground to believe the person is aware of these facts.

As used in the context of justifiable homicide with a fleeing felon, this bill defines “necessary” as “given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person. The totality of the circumstances means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.” The requirement of necessity is one which current law employs when evaluating whether the use of force in self defense is appropriate.

The provisions in this bill regarding fleeing felons are generally consistent with the standards set forth in Garner.

It is interesting to note that the court in Garner made the following observation regarding the effect of their ruling: “Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances.” (Id. at 20.) In spite of the concerns at the time the law was changed, officers and police departments have adapted to the rule established by Garner.

Justifiable Homicide by Police Officers Under Other Circumstances: This bill would establish criteria which provide legal justification for a homicide committed by a police officer. The circumstances which justify the killing of a fleeing felon have been described above. This bill would also provide that a killing is justified under all the same circumstances which provide justification for a citizen, including self defense or defense of others.

Every person in the State of California has the right to self-defense and to defend others. The following California jury instruction explains the right to self-defense and defense of others:
1. “[A] defendant is not guilty of [homicide] if he or she was justified in killing or attempting to kill someone in self-defense or defense of another. The defendant acted in lawful self-defense defense of another if:
  1. The defendant reasonably believed that he, she, or someone else was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped, maimed, or robbed;
  2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and,
  3. The defendant used no more force than was reasonably necessary to defend against that danger. (CALCRIM 505 Justifiable Homicide: Self-Defense or Defense of Another.)

This bill does not change current statutory language which specifies that a peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. Ordinarily, self defense is not available to an individual that is an “aggressor” unless, the other party escalates the amount of force. Police officers are required to respond to situations that can require a lawful and legitimate use of force. Those circumstances include situations in which an officer is making an arrest. Although this bill maintains the current statutory language, it limits the reasonable use of force when making an arrest to non-deadly force. That limitation might affect the analysis regarding a justification based on self defense in situations involving the use of deadly force.

This Bill Redefines Police Use of Force During Arrests and Use of Deadly Force: In Graham v. Connor, 490 U.S. 386 in 1989, the U.S. Supreme Court issued a ruling regarding standards regarding police use of force. In Graham, the court held that an objective reasonableness test should be used as the standard to determine whether a law enforcement official used excessive force in the course of making an arrest, or other action. The court stated:

“As in other Fourth Amendment contexts... the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation…[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

This bill amends the penal code section describing the parameters for police use of force during an arrest. This bill would specify that reasonable, non-deadly force should be used to make an arrest, prevent escape, or overcome resistance. That would be a change from current statutory language which states that the force must be reasonable, but does not make any distinction between deadly and non-deadly force.

This bill would define “deadly force” as “any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.”

With respect to deadly force, this bill would allow its use only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary to defend against a threat of imminent death or serious bodily injury to the officer or to another person, or to prevent the escape of a fleeing suspect, as specified.

This bill would add additional language directing an officer making an arrest to, “. . . , attempt to control an incident through sound tactics, including the use of time, distance, communications, tactical repositioning, and available resources, in an effort to reduce or avoid the need to use force whenever it is safe, feasible, and reasonable to do so.” This bill goes on to state that such language does not conflict with the limitations on the use of deadly force or justifiable homicide by a peace officer, as described in this bill. Some law enforcement agencies have adopted use of force policies consistent with the language above. The use of force provisions of this bill would apply to all California law enforcement agencies.

The language of this bill is likely to expose law enforcement agencies to civil liability for police actions that are inconsistent with the provisions of this bill regarding the use of force. For the same reasons, individual officers could be subject to discipline from their employing agency if they fail to comply with this bill’s provisions.

It is Not Clear How the Provisions of This Bill Limiting Certain Defenses For Peace Officers Apply to Voluntary and Involuntary Manslaughter: This bill provides exceptions of the justifications for homicide based on self defense/defense of others and fleeing felons. This bill states that the provisions regarding justifiable homicide of a fleeing felon and existing law regarding self defense, do not provide a peace officer with a defense to voluntary and involuntary manslaughter, as specified, if a person is killed due to the criminally negligent conduct of the officer. This bill also states that this includes situations in which the victim is a person other than the person that the peace officer was seeking to arrest, retain in custody, or defend against, or if the necessity for the use of deadly force was created by the peace officer’s criminal negligence.

According the proponents, this language is intended to address situations, where the police have acted in a fashion that creates a dangerous situation through poor police practices. As a result of those actions, the officer creates a confrontation with another individual, the individual then presents an imminent threat to the officer or other people, and the officer then kills the individual in self defense or defense of others.

It is not clear how this principle would interact with California’s law regarding homicide. This language applies to the statutory section that covers (1) voluntary manslaughter and (2) involuntary manslaughter. Voluntary manslaughter occurs when a killing is intentional and accompanied by one of the following circumstances: (1) The intentional killing occurs in the heat of passion, or (2) imperfect self defense, where the defendant has an honest, but unreasonable belief that self defense was necessary.

Involuntary manslaughter is an unintentional killing. The killing results because a person committed a crime or lawful act in an unlawful manner; the person committed the crime or act with criminal negligence; and the crime or act caused the person’s death.

A person acts with criminal negligence when:
1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; and
2. A reasonable person would have known that acting in that way would create such a risk. (CalCrim 581.)

This bill would place limits on the use of self defense/defense of others if an officer faces criminal charges involving the offenses of voluntary or involuntary manslaughter, if the officer acts with criminal negligence. Self defense/defense of other is a justification when a person intends to kill the decedent. This bill seeks to limit the use of such a defense by a peace officer when the defendant faces involuntary manslaughter, a crime that results from an unintentional killing. Self defense is not a defense to a crime of involuntary manslaughter.

The limitation also includes voluntary manslaughter. Imperfect self defense is one form of voluntary manslaughter. In order to be convicted of voluntary manslaughter based on imperfect self defense, the jury must find a honest belief in self-defense, or the crime would be a murder. It is not clear how this language would be interpreted by a court in analyzing criminal liability for voluntary manslaughter.

Argument in Support: According to PolicyLink, “In 2017, 172 Californians were killed by the police, and our state’s police departments have some of the highest rates of killings in the nation. Of the unarmed people California police killed, three out of four were people of color. Black and Latino families and communities are disproportionately vulnerable to police violence, creating generations of individual and community trauma. Given the significant racial disparity and the disproportionate number of men of color killed by police, passing AB 392 is imperative to achieving racial justice and securing human rights. Boys and men of color have a right to be free from fear and violence, and changing the outdated standard for law enforcement use of deadly force is necessary to ensuring their safety.

“California must update its outdated law on deadly use of force. Current law allows police to use deadly force whenever “reasonable”, even if there is no threat to life or bodily security, and even if safe alternatives to deadly force are available. California law even authorizes deadly force that is below the standard of the Constitution. This disturbing level of discretion has had dire consequences: Police in California kill community members at a rate 37 percent higher than the national average, per capita, and several of our state’s police departments have among the highest rates of killings in the country.

“In line with recommendations from policing and legal experts, including the California Attorney General, AB 392 updates California law so that police can use deadly force only when necessary to prevent death or serious injury, and requires them to use tactics to de-escalate a situation or use alternatives to deadly force when reasonable. Changing this standard will mean that officers will be trained to use deadly force less often and will be held accountable when they shoot and kill unnecessarily.

“The harm from police killings extends beyond the lives lost and impacts all involved. Police shootings cause extraordinary trauma for the families and communities impacted – trauma that disproportionately impacts communities of color. Studies show that police departments with more restrictive use of force policies not only have fewer shootings by police, but also lower rates of assaults against officers and lower crime rates. One of the Legislature’s primary goals is to protect public safety, and safeguarding Californians’ right to be safe from unnecessary deaths by law enforcement is a critical step in that direction.”

Argument in Opposition: According to California State Sheriffs’ Association, “Longstanding state and federal case law argued, reviewed, shaped, and clarified over decades, as well as thoroughly vetted policies and strict, evolving training guide law enforcement officers and agencies when it comes to the use of deadly force. The decision to apply this level of force is the most solemn, serious, and scrutinized choice an officer could be asked to make. It must often occur without notice and with only milliseconds to contemplate his or her actions. As such, shifting the standard that guides the use of lethal force from one of objective reasonableness in light of the facts and circumstances (the existing standard as described in Graham v. Connor) to necessity given the totality of the circumstances (as proposed by this measure to require an objectively reasonable peace officer in the same situation to conclude that there was no reasonable alternative to the use of deadly force) will necessarily require second-guessing of an officer’s decision, potentially with facts and information not available or known to the officer during the pendency of the encounter. In fact, this standard of necessity elicits not-so-exaggerated scenarios where an officer, so as to ensure he or she does not risk violating the new paradigm, might wait until a subject discharges a firearm at the officer before engaging. He or she might choose this course of action because the language of the bill opens the door for an after-the-fact analysis that could find a use of lethal force unnecessary when a subject points an unloaded firearm at an officer. While there is little chance an officer would be able to ascertain such a fact made crucial by the implementation of a necessity standard, he or she could nevertheless be in violation of the law given possible interpretations of this proposed statute.

“In addition to creating tremendous and routinely life-threatening risk to peace officers, AB 392 could discourage proactive policing. Fearing repercussions ranging from employee discipline to criminal prosecution based on this new standard, it is possible that officers who today would purposefully put themselves in harm’s way to do their job might tomorrow decline to act. Knowing this reality, criminals will be given carte blanche, if not encouraged, to flee from officers, disobey commands, and victimize our communities.

“Peace officers and their agencies will be subjected to levels of personal and organizational liability that will hamstring them from fulfilling their duties to protect the public safety. Instead, cops and law enforcement agencies will be forced to decide how to do their jobs with monetary risks and criminal prosecution guiding their thinking instead of the best way to defend communities from wrongdoers.

“Even if this sea change in standard were appropriate, agency policies would have to be changed and tens of thousands of peace officers would have to receive all new training. That said, the bill does not contemplate this reality. Perhaps the only thing worse than converting to this standard, which will jeopardize the lives of peace officers and those who they are sworn to protect, is the possibility that it will be done without time to adjust and train.”
Related Legislation: SB 230 (Caballero), would require each law enforcement agency to maintain a policy that provides guidelines on the use of force, utilizing de-escalation techniques and other alternatives to force when feasible, specific guidelines for the application of deadly force, and factors for evaluating and reviewing all use of force incidents, among other things. SB 230 is awaiting hearing in the Senate Public Safety Committee.
Prior Legislation: AB 931 (Weber), would have limited the use of deadly force by a peace officer to those situations where it is necessary to defend against a threat of imminent serious bodily injury or death to the officer or to another person. AB 931 was held in the Senate Rules Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alliance for Boys and Men of Color (Co-Sponsor)
American Civil Liberties Union of California (Co-Sponsor)
Anti Police-Terror Project (Co-Sponsor)
Black Lives Matter (Co-Sponsor)
California Faculty Association (Co-Sponsor)
California Families United 4 Justice (Co-Sponsor)
Communities United for Restorative Youth Justice (Co-Sponsor)
PICO California (Co-Sponsor)
PolicyLink (Co-Sponsor)
Stop Terrorism and Oppression by the Police Coalition (Co-Sponsor)
United Domestic Workers of America-AFSCME Local 3930/AFL-CIO (Co-Sponsor)
Youth Justice Coalition (Co-Sponsor)
All Saints Church, Pasadena
Alliance San Diego
American Friends Service Committee
Amnesty International USA
Annual Pan African Global Trade & Investment Conference
Anti-Defamation League
Asian Americans Advancing Justice - California
Asian Law Alliance
Asian Pacific Environmental Network
Asian Solidarity Collective
Associate Professor Stoughton at the University of South Carolina
AYPAL: Building API Community Power
Bay Area Student Activists
Black American Political Association of California
Brothers, Sons, Selves Coalition
California Black Health Network
California Calls
California Civil Liberties Advocacy
California Immigrant Policy Center
California Latinas for Reproductive Justice
California League of United Latin American Citizens
California Nurses Association
California Pan-Ethnic Health Network
California Public Defenders Association
California State Conference of the National Association for the Advancement of Colored People
California Urban Partnership
California Voices for Progress
Center for African Peace and Conflict Resolution
Center on Juvenile and Criminal Justice
Change Begins With ME
Children's Defense Fund - California
City and County of San Francisco District Attorney
Clergy and Laity United for Economic Justice
Cloverdale Indivisible
Coalition for Humane Immigrant Rights
Coalition for Justice and Accountability
Committee for Racial Justice
Community Coalition for Substance Abuse Prevention and Treatment
Council on American-Islamic Relations, California
Courage Campaign
Davis People Power
Disability Rights California
Drug Policy Alliance
Earl B. Gilliam Bar Association
Ella Baker Center for Human Rights
Empowering Pacific Islander Communities (EPIC)
Exonerated Nation
Fair Chance Project
Fannie Lou Hamer Institute
Fathers & Families of San Joaquin
Feminists in Action Los Angeles
Friends Committee on Legislation of California
Greater Sacramento Urban League
Green Party of Sacramento County
HAWK Institute
Hillcrest Indivisible
Human Impact Partners
If/When/How: Lawyering for Reproductive Justice
Indivisible CA 37
Indivisible CA-43
Indivisible CA: Statestrong
Indivisible Colusa County
Indivisible Marin
Indivisible Peninsula and CA-14
Indivisible Project
Indivisible Sausalito
Indivisible South Bay-LA
Indivisible Stanislaus
Indivisible Ventura
Indivisible Watu
Indivisible: San Diego Central
Indivisibles of Sherman Oaks
Initiate Justice
InnerCity Struggle
International Human Rights Clinic at Santa Clara Law
Japanese American Citizens League, San Jose Chapter
Jewish Voice for Peace, San Diego Chapter
Justice & Witness Ministry of Plymouth United Church of Christ
Justice Teams Network
Kehilla Community Synagogue
LA Voice
League of Women Voters of California
Legal Services for Prisoners with Children
Los Angeles Black Worker Center
Mid-City Community Advocacy Network
Motivating Individual Leadership for Public Advancement
National Center for Youth Law
National Juvenile Justice Network
National Lawyers Guild Los Angeles
National Nurses United
Oakland Police Commission
Oakland Privacy
Orange County Communities Organized For Responsible Development
Orchard City Indivisible
Our Revolution Long Beach
Pacifica Social Justice
Partnership for the Advancement of New Americans
Paving Great Futures
Peace and Freedom Party of California
People Power LA | West
Pillars of the Community
Professor Alpert at the University of South Carolina
Progressive Students of Miracosta College
Public Health Advocates
Public Health Justice Collective
Resistance Northridge-Indivisible
Reverend Al Sharpton-National Action Network
Revolutionary Scholars
Riverside Temple Beth El
Rooted In Resistance
Sacramento Area Black Caucus
Sacramento Jewish Community Relations Council
Sacramento LGBT Community Center
San Diegans for Criminal Justice Reform
San Diego City College's Urban Scholar's Union
San Diego High School's Cesar Chavez Service Club
San Diego La Raza Lawyers Association
San Diego LGBT Community Center
San Francisco No Injunctions Coalition
San Francisco Peninsula People Power
San Francisco Public Defender's Office
San Jose/Silicon Valley NAACP
Santa Barbara Women's Political Committee
Service Employees International Union, Local 1000
Showing Up for Racial Justice, Bay Area
Showing Up for Racial Justice, Boston
Showing Up for Racial Justice, Greater Dayton
Showing Up for Racial Justice, Marin
Showing Up for Racial Justice, Sacred Heart
Showing Up for Racial Justice, San Diego
Showing Up for Racial Justice, Santa Barbara
Sister Warrior Freedom Coalition
Social & Environmental Justice Committee of the Universalist Unitarian Church of Riverside
Southeast Asia Resource Action Center
The Pacific Palisades Democratic Club
The Partnership for the Advancement of New Americans
The Praxis Project
The Resistance Northridge-Indivisible
The W. Haywood Burns Institute
The Women's Foundation of California
Think Dignity
Together We Will/Indivisible - Los Gatos
United Food and Commercial Workers, Western States Council
We The People - San Diego
White People 4 Black Lives
Women For: Orange County
Youth Alive!
Youth Forward

20 Private individuals

Oppose

Anaheim Police Association
Association for Los Angeles Deputy Sheriffs
Brawley Public Safety Employee Association
Brisbane Police Officers Association
California Association of Code Enforcement Officers
California Association of Highway Patrolmen
California College and University Police Chiefs Association
California Correctional Supervisors Organization, Inc.
California Narcotic Officers' Association
California Peace Officers Association
California Police Chiefs Association
California Rifle and Pistol Association, Inc.
California State Sheriffs' Association
California Statewide Law Enforcement Association
Chula Vista Police Officers Association
El Cerrito Police Employees Association
Fresno Police Officers Association
Glendale Police Officers' Association
Hanford Police Officers' Association
Hawthorne Police Officers Association
Kern Law Enforcement Association
League of California Cities
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Napa County Deputy Sheriff's Association
North Valley Chapter of PORAC
Peace Officers Association of Petaluma
Peace Officers Research Association of California
Riverside County Sheriff's Department
Riverside Sheriffs' Association
Sacramento County Alliance of Law Enforcement
San Diego County Probation Officer Association
San Diego District Attorney Investigator's Association
San Diego Harbor Police Officers Association
San Francisco Police Officers Association
San Joaquin County Deputy Sheriff's Association
San Jose Police Officers' Association
Santa Barbara County Deputy Sheriff's Association
Solano County Deputy Sheriffs Association
Stockton Police Officer's Association
Sunnyvale Public Safety Officers Association
Union City Police Officer's Association
Ventura County Deputy Sheriffs Association

11 Private individuals

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744

AB 392: Peace officers: deadly force.